oEPA
Unittd State*
Environmental Protection
Agency
Off ice of
Solid Waste end
Emergency Responae
DIRECTIVE NUMBER: 9935.1
TITLE: §3005(e) of RCRA Operation of Hazardous Waste
Facilities by 0/0 who have failed to Achieve
Interim Status
APPROVAL DATE:
EFFECTIVE DATE: 7/31/81
ORIGINATING OFFICE:
H FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OS WER OS WER OS WER
VE DIRECTIVE DIRECTIVE Dl
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&EPA
United States Environmental Protection Agency
Washington. OC 20460
OSWER Directive Initiation Request
Interim Directive Number
9935.1
Originator Information
Name of Contact Person
Virginia Steiner
Lead Office n
LJ OUST
U OERR Q owpE
D OSW D AA-OSWER
MaHCode ^^7
Telephone Number
475-9329
Approved for Review
Signature of Office Director .
Date .
Title
RCRA §3005(e); continued operation of Hazardous Waste Facilities by owners
and operators who have failed to achieve interim status
Summary of Directive
Guidance for Enforcmnent in how to deal with facilities which miss the notice
and application filing deadlines for interim status pursuant to RCRA
§3005(e).
§3005(e) interim status
enforcement of interim status
deadlines for interim status
Type of Directive (Manual. Policy Directive, Announcement, etc.)
Status
D Draft
New
LJ Revision
Does this Directive Supersede Previous Directive(s)?
No Does It Supplement Previous Directive(s)?
If "Yes" to Either Question. What Directive (number, title)
Review Plan
D AA-OSWER D OUST
D OERR D OWPE
D OSW O Regions
LJ OECM
D OGC
Q OPPE
Other (Specify)
This Request Meets OSWER Directives System Format
Signature of Lead Office Directives.Officer
Signature of OSWER Directives Officer
Date
Date
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31 1981
Of
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: RCRA, Section 3005(e); Continued Operation of Hazardous
Waste Facilities by Owners or Operators Who Have Failed
to Achieve Interim Status
TO: Enforcement Division Directors
Regions I to X
FROM: Douglas MacMillan, Director _
Office of Waste Programs Enforcement (WH-527M)
A November 19, 1980, Federal Register notice (45 FR 76630)
solicited comment on enforcement and regulatory policies which
the Agency was considering to deal with facilities which miss
the notice and application filing deadlines for interim status
pursuant to RCRA~,~ Sect ion 300 5 (e). Several comments were received
from the public and from Regional personnel regarding these
policies. The comments revealed some confusion regarding the
requirements for achieving interim status under the Act.
Accordingly, this memorandum provides a discussion of the
statutory and regulatory prerequisites for achieving interim
status, a discussion of the authority of the Agency to allow the
continued operation of hazardous waste facilities by owners or
operators who have failed to achieve interim status, and guidance
regarding the exercise of that authority.
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A. Conditions for Achieving Interim Status
When Congress specified in Section 3005 of RCRA that all
treaters, storers, and disposers of hazardous waste must obtain
a permit, it recognized that EPA would not be able to issue
permits to all such persons before the Subtitle C program became
effective. Consequently, Congress provided in Section 3005(e)
that a facility owner ©r operator meeting certain conditions would
be treated as having been issued a permit until final administra-
tive action is taken on the facility's permit application. This
statutorily conferred temporary authorization to operate is
commonly referred to. as "interim status* - the title of the
subsection by which it was created. Section 3005(e) sets forth
requirements for qualifying for interim status. EPA elaborated en
those requirements in the Consolidated Permit Regulations, 40 CFH
122.22 and 122.23, as amended on November 19, 1980. Read
together, these provisions provide that a person who:
(1) owns or operates a facility which is required to
have a permit under Section 3005 and which was in existence on
November 19, 1980;
(2) has complied with the requirements of Section
3010(a) of RCRA, regarding notification of hazardous waste
activity; and
• (3) -has complied with the requirements of 40 CFR
122'.22 (a) and (c), governing submission of Part A applications
shall be treated as having been issued a hazardous waste facility
permit until such time as final administrative disposition of the
facility's permit application is made.
An essential feature of "interim status" (and the source of
confusion within both the regulated community and the Agency) is
that, unlike a permit, it is not granted or conferred by EPA.*
Rather, it is conferred directly by statute. Any person meeting
the above three statutory requirements automatically qualifies for
interim status. The only exception is where it can be shown that
final disposition of an application has not been made because
* EPA representatives, however, have upon request
apprised hazardous waste management facilities what the various
prerequisites to interim status are and how they can be met,
and in certain situations, have ventured opinions as to whether
particular facilities appear to have met those prerequisites. An
EPA opinion that a facility appears7 to have met tfhe statutory pre-
requisites for interim status (which should in no way be confused
with a "grant" of interim status) does not ultimately dispose of
the issue of whether a facility has interim status. Nor does an
EPA opinion preclude a private citizen from forcing a judicial
(footnote continued on next page)
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the.applicant has failed to provide necessary information.
(See, Section 3005(e).) In addition, the failure of an owner
or operator to furnish a requested Part B application on time/
or to furnish in full the information required by the Part B
application, is grounds for termination of interim status.
(40 CFR 122.22(a)(3). )
The Agency has provided guidance regarding each of these
three prerequisites for achieving interim status, as follows.
1. Requirement that the Facility Be in Existence
on November 19/ 1980
The first statutory-prerequisite for obtaining interim"status"
is that the owner's or operator's facility be "in existence on
November 19, 1980." (Section 3005(e}.) Interpretation of this
requirement can be found at 45 FR 33068-69 and 33323-24 (May 19,
1980), 45 FR 76633-34 (November 19, 1980), and 46 FR 2344-48
(January 9, 1981), attached hereto.
2. Requirement that the Owner or Operator
Comply with Section 3010(a)
Section 3010(a) of RCRA requires an owner or operator of a
facility for the treatment, storage or disposal of a hazardous
waste identified or listed in regulations promulgated under
Section 3001 not only to file a notification, but to file the
notification within ninety days. For example, a person who was.
required to notify as a result of the publication of EPA's May 19,
1980, regulations and did not file a notification by August 18,
1980, has not "complied with the requirements of Section 3010(a)6
and has not achieved interim status. (Section 3005(e); 40 CFR
122.23(a)(1).) Further discussion is provided at 45 FR 76631-33
(November 19, 1980), attached.
3. Requirement that the Owner or Operator
File an Application Under Section 3005
The final statutory condition for achieving interim status
is that the owner or operator of a facility have "filed an
application under . . . section [3005]". EPA's regulations
implementing Section 3005 condition eligibility for interim
status on a facility's having "complied with the requirements of
Sl22.22(a) . . . governing submissions of Part A applications.*
(See, 40 CFR 122.23(a)(2).)
resolution of the issue under the RCRA citizen suit provision,
Section 7002(a)(l). If not carefully drafted, such an opinion
might, however, complicate future enforcement actions, based on
subsequently obtained information, brought against the facility
for operating without a permit or interim status. Recommendations
regarding such opinions have consequently been set forth in a
memorandum (attached) to Headquarters and Regional RCRA
personnel.
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Section 40 CFR 122.22(a) formerly required that all owners
and operators of existing hazardous waste treatment/ storage, or
disposal facilities submit Part A of their permit application by
November 19, 1980. The section was amended on November 19, 1980,
to redefine the deadline for filing Part A applications. 40 CFR
122.22(a)(l) now provides:
•Owners and operators of existing hazardous waste
management facilities must submit Part A of their perai.t-
application to the Regional Administrator no later than
(i) six months after the date of publication of
regulations which first require them to comply with the
standards set forth ic 40 CFR Parts 264 or 265, or
(ii) thirty days after the date they first become
subject to the standards set forth in 40 CFR Parts 264
or 265, whichever first occurs.*
Accordingly, a facility at which a solid waste was handled prior
to November 19, 1980, is eligible for interim status if its owner
or operator files a Sect-ion 3010 notification within ninety days
(if so required) and a Part A permit application within six months
after EPA promulgates regulations designating such solid waste
as a hazardous waste.
Further, a facility which handled hazardous waste prior to
November 19, 1980, but was not required to apply for a permit
because of a regulatory exemption, may qualify for interim status
if its owner or operator files a Part A permit application within
30 days after losing its exemption, (e.g., a generator who
produced hazardous waste prior to November 19, 1980, who after
November 19, 1980, accumulates for the first time hazardous waste
on-site for longer than 90 days.) As noted in the Federal Regis-
ter "notice pertaining to the amendment, some of the facilities
which will qualify for interim status by virtue of 40 CFR 122.22
(a)(l)(ii) technically may be operating without a permit until
they submit their permit application. (45 FR 76633, November 19,
1980, attached.) Consequently, these handlers have been given
notice that "EPA will not initiate any enforcement action against
them ... if they notify their EPA Regional Office immediately
and file an application within the thirty-day period.* Id.
In addition, the Agency may by compliance order issued under
Section 3008 of RCRA extend the date by which the owner or
operator of an existing hazardous waste management facility may
submit Part A of its permit application. (40 CFR 122.22(a)(3).)
Guidance regarding interim status and the owner's or
operator's obligation to file a Section 3010 notification and a
timely Part A application is found at 45 FR 76633 (November 19,
1980), and 45 FR 33321-24 and 33543' (May 19, 19801), attached.
Further guidance regarding the exercise of a Region's
discretionary authority to extend the date for submitting a Part A
permit application is provided in Section D of this memorandum.
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B. Section 3005(e) and Enforcement Discretion
f
Subtitle C provides that/ upon the effective date of the
regulations identifying and listing hazardous wastes/ "the
treatment/ storage/ or disposal of any such hazardous waste is
rohibited except in accordance with such a permit.*' (Section
005(a)[emphasis added}.) Consequently, any person treating/
storing or disposing of hazardous waste without a permit or
without having achieved interim status may be ordered by the
Agency to cease that operation (Section 3008(a)), may be subject
to civil penalties (Section 3008(c/g)), and may be subject to
fine and imprisonment~(Section"3008(d")')V
Congress1 intent in enacting the sanctions in Subtitle C was
to 'permit a broad variety of mechanisms so as to stop the illegal
disposal of hazardous wastes" (H.R. Rep. No. 1491, 94th Cong., 2d
Sess./ at 31). In most cases in which a Region determines that a
person has treated/ stored or disposed of hazardous waste in
violation of Section 3005(a), prompt administrative or judicial
action should be brought seeking cessation of the violation and/
if determined to be appropriate, assessment of a penalty.
The Agency recognizes that the literal construction of
Section 3005(e) will have the effect of preventing owners or
operators of certain well-managed facilities from qualifying for
interim status. In order to provide relief where appropriate/
Congress has provided that enforcement under Subtitle C is
discretionary. (Section 3008(a)(l).) Cf., Commonwealth of
Kentucky ex rel. Hancock v. Ruckelshaus/ 497 F.2d 1172 (6th Cir.
1974), affd, 426 U.S. 167 (1976); Corn Refiners Association, Inc.
v. Costle, 594 P.2d 1223, 1225, 1226 (8th Cir. 1979); Weyerhauser
Co. v. Costle/ 590 P.2d 1011, 1056-58 (D.C. Cir. 1978); United
States v. Olin Corp./ 465 P. Supp, 1120, 1136 (WSDSN.YS 1979);
Committee for Consideration of Jones Falls Sewage System v. Train/
387 F. Supp. 526, 529-30 (O. Md. 1975).
Although EPA cannot consider facility owners or operators
who have failed to satisfy the statutory requirements of Section
3005(e) as having achieved interim status/ the Agency may exercise
its enforcement discretion to allow such facilities to continue
operating where the continued operation would be in the public
interest. Cf., State Water Control Board v. Train-/ 559 F.2d 921,
927 (4th Cir. 1977); Sierra Club v. Train/ 557T77d 485 (5th Cir.
1977); New Mexico Citizens for Clean Airland Water v. Train/ 6 ERC
2061, 2065 (D.N.M. 1974).Policies referenced in the November 19,
1980, Federal Register notice (45 FR 76630-36) have been developed
to provide relief in these situations.
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C. Allowing the Continued Operation of a Facility by an Owner
or Operator Who Has Failed to Achieve Interim Status
Although the enforcement authority of Section 3008 vests
discretion in the Agency/ courts have held that "the exercise
of prosecutorial discretion, like the exercise of executive
discretion generally, is subject to statutory and constitutional
limits enforceable through judicial sevievj,* Nader v. Saxbe, 497
F.2d 676, 679-90 (D.C. Cir. 1974) ,**. See, in particular, '•Review-
ability of Prosecutorial Discretions Failure to Prosecute,"
75 Colum. L. Rev. 130 (1975). If the.Region determines, in the
exercise of its enforcement discretion, to allow the continued
operation of a facility by an owner or operator who has failed
to achieve interim status, it must do so rationally and in good
faith. In addition, the Agency may be required to state the
factors upon which it relied in deciding not to bring a particular
enforcement action. See discussions in Baehowski v» Brennan, 502
F.2d 79 (3rd Cir. 1974), rev'd in part, Bunlog v. BachowsJci, 421
U.S. 560 (1975)? Environmental Defense Fund v. Kardin, 428 F.2d
1093, 1099-1100 (D.C. Cir. 1970). Consequently, each Region's
exercise of enforcement discretion must be based upon evidence
that will permit the reasonableness of its decision to be later
demonstrated.
In the context of an owner's or operator's failure to
achieve interim status, the exercise of.enforcement discretion
should require consideration of such factors as:
o the harm (or benefit) to the environment that will
result from the facility's continued operation;
o the circumstances surrounding the failure of the
owner or operator to meet the requirements of
Section 3005(e);
o the compliance history, if any, of the owner or
operator including his recalcitrance or good faith
efforts to comply (both with regard to the subject
facility and any other facility for which the
owner or operator is responsible);
** There is, however, authority supporting the position
that a court may not review EPA's decision not to commence an
action under S3008, either because such a decision is committed to
agency discretion by law (cf_., Commonwealth of Kentucky, supra) or
because there exists an adequate remedy at law uqder the Act's
citizen suit provision, Section 7002 (cf., Hall v. Equal
Employment Opportunity Comm., 456 F. Supp. 693 (N.p. Calif.
1978)).EPA will liXely rely upon such authority in the event
that a decision by the Agency to decline to bring an enforcment
action is challenged.
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o the availability of enforcement resources;
o the importance of the violation in comparison
with other violations; and,
o the extent to which the owner or operator should
have known of RCRA's regulatory requirements
(presumably, a commercial off-site hazardous waste
management facility should be held to a somewhat
higher standard of knowledge of the regulations
than should a generator with a relatively small
on-site facility that is operated in support of
and incident to the generator's primary line of
business); and, -----
o fairness and equity.
If there is insufficient information in the Region's files
to make a decision based upon the above criteria, the Region may
instruct the owner or operator to submit relevant information
within a reasonably prompt period of time. In many instances,
an EPA inspection will be necessary to verify the information
submitted or to gather new information.
The Regional Office should keep a careful record of all
actions allowing/ or disallowing, the continued operation of a
facility by an owner or operator who has failed to achieve interim
status. Decisions to allow, such continued operation should be
accompanied by a statement, as detailed as practicable, of the
reasons supporting the action.
0. -Providing Notice to the Owner or Operator, and the Public, of
the Exercise of Enforcement Discretion
If the Region determines to allow the continued operation of
a facility whose owner or operator has failed to achieve interim
status, the Region may have no legal obligation to formally advise
the owner or operator of that decision. In virtually all
instances, of course, it will be appropriate to provide notice
in order, for example, to apprise the public of the Region's
determination, inform transporters or generators using the
facility of the exercise of enforcement discretion, and most
importantly, to aid the owner/operator by advising him/her that
the operation of the facility will be allowed to continue despite
the failure to meet the requirements for achieving' interim status.
1. Facilities Failing to Provide Timely Notification under
Section 3010.
i
Compliance orders issued under Section 3008 of RCRA (with
or without a civil penalty assessment) may be used to provide
notice of the Region's decision to allow the continued operation
of a facility provided that that notice is part of a broader set
of compliance requirements. (Neither a compliance order nor an
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interim status compliance letter (see below) serve to "grant"
interim status to a facility which failed to timely notify. Such
a facility can never actually have interim status. (See pages
2-3).) A compliance order obviously must be used if an
administrative penalty is being assessed. (Section 3008(c).)
Penalties of at least 3100 for each month the notification was
overdue would ordinarily b€ appropriates In most instances where
a notification was more than six months late, penalties should be
assessed. If the violator is an off-site commercial hazardous
waste management facility, higher penalties and a shorter grace
period should be considered.. A compliance order also has the
advantage of clearly requiring an owner or operator to comply with
interim status standards (40 CFR Part 265), thereby making it
difficult for the owner or operator to argue that such standards
do not apply to him and also preventing him from attaining any
unfair advantage over competitors who did comply with the
requirements for achieving interim status. (See, 40 CFR
265.l(b).) A compliance order also provides the alleged violator
with a clear remedy if the person believes that he is not in
violation of the Act. (See 40 CFR 22.15.)
In addition, a compliance order may provide for more certain
imposition of penalties in the event that there is a subsequent
violation of RCSA.. (See, Section 3008(a) (3)'.) An administrative
consent order may also provide an admission by the owner or
operator regarding the applicability of, for example, the interim
status standards, and the reasonableness of other obligations
imposed by the, order.
A form complaint prepared pursuant to the Consolidated
Rules of Practice, 40 CFR Part 22, is appended as Attachment 2.
y''
The Regions may also issue Interim Status Compliance Letters
(ISCL's) to provide notice to owners and operators of qualifying
facilities that they will not be prosecuted for operating without
having achieved interim status, providing they comply with the
conditions set forth in the ISCL. An ISCL should be issued only
upon request of the facility. Ordinarily, firms such as off-site
treatment, storage or disposal facilities whose business is
solely or primarily hazardous waste management should receive
compliance orders rather than ISCL's. In no event should an ISCL
be issued to a facility which notifies later than one year after
the required date, or after September 18, 1981, which ever occurs
later.
An ISCL should contain the following specific elements:'
a. Reference to the particular facili'ty (by name and
location) and the owner or operator with regard to which the
action is being taken.
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b. A statement that the ISCL is an exercise of
enforcement discretion.
c. A statement that the enforcement authority will
exercise its discretion and not seek to cease the treatment,
storage/ or disposal of hazardous waste by the owner or operator
at the referenced facility, on the condition that:
(1) the owner and operator comply fully with the
terms of the ISCL,
(2) the owner and operator comply fully with the
Interim Status Standards, 40 CPU. Part 265, and applicable
Consolidated Permit Regulations, 40~CF!T Parts 122 and 124,-
within time periods set forth in the ISCL,
(3) circumstances do not occur which would warrant
modification of the Agency's exercise of enforcement discretion,
and
(4) circumstances do not occur which would warrant
an action under Section 7003 of RCRA.
d. A statement that the. ISCL does not preclude the
possibility of citizen suits under Section 7002 of RCRA. Since
an ISCL should only be issued after a careful determination that
such an exercise of enforcement discretion is in the public
interest, few such actions by third parties are anticipated.
It is nevertheless important to.everyone concerned to be aware
that the possibility of such an action exists.
e. A statement that the exercise of enforcement
discretion expressed in the ISCL shall terminate at the time that
final administrative disposition of the permit application for
the subject facility is made.
f. The ISCL should be signed by the appropriate
Regional supervisor of hazardous waste enforcement activities to
underscore the fact that it is an exercise of enforcement
discretion.
g. Where appropriate, an ISCL may contain provisions
shielding generators and transporters using the facility from
Federal prosecution for sending wastes to an unpermitted
facility.
A model ISCL is .appended as Attachment 1. It is emphasized
that it is only a sample and each ISCL must be carefully drafted,
within the guidelines set forth above, to cover the particular
situation at issue. "'* i
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Written agreement of the owner or operator that the terns of
the ISCL (including the schedule for filing, and compliance with
the interim status standards and consolidated permit regulations)
are reasonable and achievablef and that the owner or operator
will comply with them should be obtained. (See Attachment 1)
2. Facilities Failing to Pile Part A of their Permit
Application on Time.
A new provision of the Consolidated Permit Regulations was
promulgated on November 19, 1980, and provides:
•The Administrator may by compliance order issued
under Section 3008 of RCRA extend the date by which
the owner and operator of an existing hazardous waste
management facility must submit Part A of their
permit application." (40 CPR 122.22(a)(3).)
A purpose of the amendment is to allow a facility that
inadvertently missed the filing deadlines set forth in 40 CFR
122.23(a) to nevertheless obtain interim status. (45 PR 76633,
November 19, 198Q.)
The November 19 amendment recognizes the differences in
effect in failing to comply with 3010(a) and failing to file
a timely Part A. Section 3010(a) sets a requirement to notify
within a set period for a specified class of facilities, and
this is a condition for achieving interim status. Failure to
meet that deadline, if required to do so, results in failure
to achieve interim status. However, Section 3005(e)(3) only
requires submission of a permit application without specifying
a deadline. EPA, through its regulations, originally set a
deadline of November 19 for submission of Part A's. The
regulatory amendment reflects the Agency's recognition that,
unlike the deadline for notification, the deadline for Part A's
is not statutorily required and that EPA may, therefore,
administratively adjust that deadline to allow facilities
submitting late Part A's to achieve interim status.
Issuance of an order extending the Part A permit application
deadline requires consideration of the same factors set forth in
Section C of this memorandum. As previously noted, the Region
should consider the harm or benefit to the environment that will
result from the facility's continued operation, the circumstances
surrounding the failure of the owner or operator to meet the
Part A filing deadline, the owner's or operator's compliance
history, the availability of enforcement resources, the im-
portance of the violation in comparison with other violations,
the knowledge of the statutory and'regulatory requirements which
that type of facility had or should have had, and other equitable
considerations.
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As §122.22(a)(3) deals specifically with this situation,
compliance orders rather than ISCL's should be used to allow
such a facility to continue in operation. If a late (after
November 19, 1980, or other applicable date) Part A application
has already been submitted, the order should include a statement
that the application has been accepted as if timely .filed,
conditioned upon compliance with the terms of the order. If no
Fart A has been received, a deadline for its submission should be
specified. (Ordinarily, this should not be more than thirty days
from the date of issuance of the order.) (See Attachment 2,
Page 2.3.) A decision as to whether to assess a penalty should
be based on the same criteria as set forth for late notifiers
on pages 6 and 7. - - _ •- -- -- - — -
3. Failure to Meet the Definition of "In Existence."
The effect of the "in existence" requirement, which was
previously discussed, is to assure that "new* facilities are
constructed only after they have obtained a permit. As this
provision is of central importance to the Act, it is anticipated
that few if any facilities not "in existence" on November 19,
1980 will be allowed to begin or continue operations without
having been issued the appropriate EPA or State permit. If a
Region feels that-such a facility should be allowed to operate,
all appropriate headquarters offices should be contacted in
advance to discuss the appropriate mechanism to allow such
operation.
If you have any questions regarding this guidance, you
should contact Jim Bunting, Acting Director, Legal Division,
Office of Waste Programs Enforcement (WH-527M) FTS-382-3050.
cc: Directors, Air and Hazardous Materials Divisions,
Regions I and III - X
Director, Water Division, Region II
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Model Interim Status Compliance Letter
[Name of Owner or Operator]
[Address]
Re: [Name of owner or operator] ;
[Name and location of facility] ? •
Section 3005, Resource Conservation and Recovery
Act
Cear [Name] s
Section 3005 of the Resource Conservation and Recovery Act
provides that no hazardous waste identified by the Environments!
Protection Agency pursuant to Section 3001 of the Act may be
treated/ stored, or disposed of except in accordance with the
terns of a permit. Regulations identifying certain hazardous
wastes were promulgated by the Environmental Protection Agency
on May 19, 1980, and became effective on November 19, 1980.
c
Section 3005 (e) of the Act provides that a person meeting
certain conditions shall be treated as having been issued a pe^it
until final administrative action is taken on its permit appli-
cation, A person meeting the requirements of Section 3005 (e)
is commonly referred to as having 'interim status".
o
*• &
a
The Environmental Protection Agency has determined that, from
[date] to [date] , [name of owner or. -operator] [owned or operated]
a .facility for the [treatment, storage, or disposal] of hazardous
waste at [location]. The Environmental . Protection Agency has
further determined that, from [date] to- [date] , [name of owner or
operator] [treated, stored, or disposed of] substances, including
, which have been identified --or listed as
— —
hazardous waste under Section 3001, without a permit or without
having interim status, in violation of Section 3005 (a) of the
Act. .
ATTACHMENT 1
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[Name of owner or operator] has not achieved interim status
pursuant to Section 3005(e) during this period because [name of
owner or operator] failed to comply with the requirements of
Section 3010(a) of the Act, regarding notification of hazardous
waste activity.
Notwithstanding the violation of Section 3005(a) .by [name of
owner or operator], the Environmental Protection Agency, Region O,
in the exercise of its enforcement discretion, will not take
action against (name of. owner of operator] under Section 3008 of
the Act with respect to [name of owner or operator]'s failure to
obtain a permit or otherwise to have interim status for this
facility , on the condition that:
1. [Name of owner or operator! ceases, within
days of the receipt of this letter, all treatment, storage, or
disposal of any hazardous waste, except such [treatment, storage,
or disposal] at the facility as shall be in complete compliance
with the Standards Applicable to Owners and Operators of Hazardous
Waste Treatment, Storage, and Disposal Facilities, 40 CFR Part
265; and . .. . . *
2. [Name of owner or operator] complies with all
applicable requirements of the Consolidated Permit Regulations,
40 CFR Part 122, Subparts A and B, and 40 CFR Part 124; and
3. [Other conditions with which continued operation
must comply]; and
provided further that conditions do not arise which warrant an
emergency action under Section 7003 of the Act or which would
otherwise warrant modification of the Agency's, exercise of
enforcement discretion.
*" «
This Interim Status Compliance Letter does not constitute
a waiver with respect to or imply that- the Agency will not take
appropriate action against [name of owner or operator] for its
failure to fully comply with any relevant statutory, regulatory,
permit and other legal requirements applicable to [name of owner
or operator], except as specifically set forth above.
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[Name of owner or operator] should note that this Interim
Status Compliance Letter does not preclude the commencement of an
action pursuant to Section 7002 of the Act by a third person to
enforce the requirements of Section 3005(a) or any other provision
of the Act or its implementing regulations.
This exercise of enforcement discretion shall terminate, no
later than the time that final administrative disposition of the
facility's permit application is made.
Copies of this document may be. furnished to generators/
transporters or other persons to indicate that hazardous wastes
may be lawfully delivered to and accepted at this facility if
done pursuant to the terms and conditions set forth in this
document and other applicable laws and regulations.
Very truly yours,
[Name]
Director, Enforcement Division
[Name of owner or operator] hereby agrees that the terms of.
the above Interim Status Compliance Letter (including the
schedule for complying with the Standards Applicable to Owners ant
Operators of Hazardous Waste Treatment, Storage, and Disposal
Facilities, 40 CFR Part 265, and the Consolidated Permit Regula-
tions, 40 CFR Parts 122 and 124) are reasonable and achievable,
and that [name of owner or operator] wi-11 comply with them.
[Name .of Owner or Operator]
< •
».««
By: ^-: :• J
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IN THE MATTER OF
[NAME OF VIOLATOR]
[EPA ID
Resource Conservation and
Recovery Act Proceedings
Section 3008(a)(l)
42 O.S.C. S 6928(a)(l)
Docket No. I-81-l(r)RMR
. COMPLAINT
J
TO: REGIONAL HEARING CLERK
[Address]
[NAME OF VIOLATOR]
[Address of Violator]
COMPLAINT
This Complaint is filed pursuant to Section 3008(a)(1) of •
the Solid Waste Disposal Act, as amended by the Resource Conser-
vation and Recovery Act, 42 U.S.C. S 6928(a)(l), and the
Environmental Protection Agency's Consolidated Rules of Practice
Governing the Administrative Assessment of Civil Penalties and
the Revocation or Suspension of Permitst 40 CFR Part 22* The
Complainant is the United States Environmental Protection Agency
(hereinafter EPA). The Respondent is"[name of violator].
ATTACHMENT 2
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DETERMINATION OF VIOLATION
1» Section 3005(a) of Subtitle C of the Act provides, in
part/ that
sthe Administrator [of the Environmental Protection
Agency] 'shall promulgate regulations requiring each
person owning or operating a facility for the treatment,
storage, ©r disposal of hazardeus waste identified or
listed under this subtitle to have a permit issued
pursuant to this section. [After the effective da€e
of the regulations!, the treatment, storage, or dis-
posal of any such hazardous waste is prohibited except
in accordance with such a permit.*
2o Regulations requiring each person owning or operating
a facility for the treatment, storage, or disposal of hazardous
waste to have a permit issued pursuant to Section 3005 were
Promulgated by the Administrator on May It, 1980, and are codifitd
at 40 CFR Parts 122 and 124. The effective date of these regula°
tions is November 19, 1980.
30 Section 3005(e) of the Act provides that an owner or
operator of a facility shall be treated as having been- issued a
permit pending final administrative disposition' of his/her permit
application provided thats (1) the facility.was in existence on
November 19, 1981; (2) the requirements of Section 3010(a) of tb«
Act concerning notification of hazardous waste activity have been
complied with, and (3) application for a permit has been made.
This statutory authority to operate is known as interim status.
EPA regulations implementing these provisions are found at 40 CFR
Part 122o
4. From [date] to .[date], [name of violator] [owned or
operated] a facility (hereinafter, "the facility") for the
[treatment, storage, or disposal] of hazardous waste at
[location]. . ' -
S. From [date] to [date], [name of violator] [treated,
stored, or disposed of] substances, including
and , which have been identified or listed as
hazardous waste under Section 3001 of the Act, without a permit
and without having achieved interim status-,' in violation of
Section 3005(a) of the Act. Interim status was not achieved
because [name of violator] failed to submit [notification by
(date) as required by Section 3010(a) of the Act] - or - [Part A
of the application for a permit by (date) as required by 40 CFR
122.22]. " • ' , -
6. Notwithstanding the violation of the requirements of
Section 3005(a) of the Act by [name of violator] the continued
operation of the facility
(a) for a limited period of time, and
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(b) if in complete compliance with the Standards
Applicable to Owners and Operators of Hazardous Waste Treatment/
Storage/ and Disposal Facilities/ 40 CFR Part 265, and
(c) if in complete compliance with the conditions set
forth in this Complaint,
is determined to be in the public interest because "[a concise
statement pursuant to 40 CFR 22.14, of the factual basis for
and the reasoning behind the decision to allow the continued
operation of the facility].
•
(For Part A's submitted late) If these conditions
are complied with/ the Part A permit application submitted by
[name of violator] on [date] shall/ pursuant to 40 CFR
122.22(a)(3), be accepted as if timely filed.
TERMS FOR COMPLIANCE
FIRST/ A. (For only Part A's not yet submitted)[Name
of violator] shall/ within days of receipt of this
Complaint/ submit Part A of a permit application with [name]/
Regional Administrator, Region I, United States. Environmental
Protection Agency as required by 40 CFR Part 122,
(For all violations)
B. [Name of violator] shall/ within days
of receipt of this Complaint, cease all treatment, storage, or
disposal of any hazardous waste except such [treatment, storage/.
or disposal] at the facility as shall be in complete compliance
with the Standards Applicable to Owners and Operators of Hazardous
Waste Treatment, Storage, and Disposal Facilities, 40 CFR Part
265; and
C. [Name of violator] shall fully comply with the
Consolidated Permit Regulations, 40 CFR Parts 122 and 124, as if
[name of violator] had filed timely 'Notification of Hazardous
Waste Activity" pursuant to Section 3010(a) and submitted Part A
of a permit application as required by those regulations; and
D. [Other conditions with which continued operation
must comply];
OR, at the option of [name of violator],
SECOND, On or before [date], [name of violator] shall cease
treating, storing or disposing of any hazardous waste subject to
Subtitle C of the Act, -** i
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ASSESSMENT OP PENALTY
In view of the above/ pursuant to Section 3008(c) of the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6928(c)p
the United States Environmental Protection Agency assesses a
penalty of [amount] dollars against respondent. [State basis
for amount assessed.] Payment may be made by check payable to
the Unitsd States of America and remitted to [name], [address].
FILING AN ANSWER . T
If [name of violator] (1) contests the factual claims made in
'this Complaint/ (2) contends that the amount of the penalty or the
terms for compliance proposed in the Complaint is inappropriate,
@r (3) contends that it is entitled to judgment as a matter of
law, [name of violator] must file a written answer within thirty
days as set forth in Section 22.15. [Same of violator] may also
request in its answer that a public hearing be held. In the event
that [name of violator] does not file an answer, a default
judgment may be entered pursuant to 40 CFR 22.17.
INFORMAL CONFERENCE
The Environmental Protection Agency encourages all parties
against whom a complaint has been issued to explore the possi-
bility of resolving the problem at an informal conference.
[Name of violator] may confer with [name], Attorney, Enforcement
Division, at [telephone], concerning settlement. Settlement
conferences shall not affect the obligation of [name of violator*]
to. file a timely answer under 40 CFR 22.15
[name]
Director, Enforcement Division
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